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In re D.T.

Court of Appeals of Texas, Seventh District, Amarillo

July 16, 2019

IN THE INTEREST OF D.T. AND A.T., CHILDREN IN THE INTEREST OF J.C., A CHILD

          On Appeal from the County Court at Law No. 1 Randall County, Texas Trial Court No. 72, 269-L1 and 72, 268-L1, Honorable Jack M. Graham, Presiding

          Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

          MEMORANDUM OPINION

          James T. Campbell, Justice

         These two appeals arise from final orders in two termination-of-parental-rights cases. Petitioner in the trial court and appellee in both cases is the Texas Department of Family and Protective Services. In case number 07-19-00071-CV, the mother and the father each appeal the termination of their parental rights to D.T. (age six at the time of final order) and A.T. (then age three). In case number 07-19-00072-CV, the mother appeals the termination of her parental rights to J.C. (then age eight). J.R.C. is the biological father of J.C. and was a party in the trial court in case number 07-19-00072-CV but did not appeal the order terminating his parental rights.[1]

         In case number 07-19-00071-CV we will affirm the order of the trial court terminating the mother's parental rights to D.T. and A.T. and appointing the Department permanent managing conservator of the children. We will reverse and remand for a new trial that portion of the trial court's final order terminating the parental rights of the father to D.T. and A.T. We will affirm the trial court's final order terminating the mother's parental rights to J.C. in case number 07-19-00072-CV.

         Background

         In May 2017, the Department received a report alleging the mother and the father were using drugs and neglecting the supervision of their children, D.T. and A.T., and the mother's child, J.C. The children's caseworker, Alyssa Petty, testified at final hearing the Department was initially concerned with the father's anger, arguments and domestic violence between the mother and the father, and the family's unsanitary living conditions. Sophia Munoz, a Department investigator, testified the family was homeless.

         July 2017 drug screens of the family showed the mother was positive for methamphetamine, amphetamines, and cocaine, the father was positive for methamphetamine and cocaine, J.C. was positive for cocaine, and A.T. was positive for amphetamines and methamphetamine. The Department filed the suits affecting the parent-child relationship that month. The children were removed, and the Department was appointed temporary sole managing conservator of each child.

         The two cases were tried together to the bench in January 2019. Following the close of evidence, the children's guardian ad litem and attorney ad litem recommended termination of the mother and the father's parental rights to D.T. and A.T. and termination of the mother's parental rights to J.C. He recommended as an alternative appointment of the Department as permanent managing conservator of the three children with the mother and the father named possessory conservators.

         In its termination orders in both cases, for each of her three children, the court found the mother had (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child. It further found termination of the mother's parental rights was in the best interest of D.T., A.T., and J.C.[2] The court's final order in case number 07-19-00071-CV also terminated the father's parental rights to D.T. and A.T. on findings that he (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; and (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child and that termination of his parental rights was in the best interest of D.T. and A.T.[3]

         Analysis

         I. Legal Background

         The Constitution protects "[t]he fundamental liberty interest of natural parents in the care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. In re E. N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "Clear and convincing evidence" is that "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In re N.G., No. 18-0508, 2019 Tex. LEXIS 465, at *7 (Tex. May 17, 2019) (per curiam) (quoting Tex. Fam. Code Ann. § 101.007).

         The Family Code permits a trial court to terminate parental rights if the movant proves by clear and convincing evidence that the parent committed an action prohibited under section 161.001(b)(1) and termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when there is also a finding that termination is in a child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.- Amarillo 2005, no pet.). Thus a termination order may be affirmed if it is supported by legally and factually sufficient evidence of any statutory ground on which the trial court relied for termination, and the best interest finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.-San Antonio 2012, pet. denied).

         Both the mother and the father challenge the legal and factual sufficiency of the evidence supporting the court's termination orders. Under the legal sufficiency analysis, we examine all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. However, we take into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, we must defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         In a factual sufficiency review, a court of appeals must give due consideration to the evidence the factfinder reasonably could have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. In doing so we consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266.

         Subsection 161.001(b)(1)(D) permits termination when clear and convincing evidence shows that the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(D). Subsection (D) requires a showing that the environment in which the child was placed posed a danger to the child's physical or emotional health, and it permits termination based on a single act or omission by the parent. In re K.C.F., No. 01-13-01078-CV, 2014 Tex.App. LEXIS 6131, at *32-34 (Tex. App.-Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) (citation omitted). Subsection (D) concerns the child's living environment, rather than the parent's conduct, though parental conduct may produce an endangering environment. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). It is not necessary that a parent's conduct be directed at the child or that the child be injured, but the parent must at least be aware of the potential for danger to the child in such an environment and must have disregarded that risk. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Illegal drug use and criminal activity support a conclusion that the child's surroundings endanger her physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). The relevant time frame under this subsection is prior to the child's removal. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.-Texarkana 2013, pet. denied).

         To assess the trial court's best-interest determination, we may consider the factors itemized in Holley.[4] While the Holley "listing is by no means exhaustive, [it] does indicate a number of considerations which either have been or would appear to be pertinent." Holley, 544 S.W.2d at 372.[5] "The absence of evidence about some of these considerations would not preclude a fact-finder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." In re C.H., 89 S.W.3d at 27. In some circumstances, evidence of even one Holley factor may be sufficient. Jordan, 325 S.W.3d at 729 (citing In re C.H., 89 S.W.3d at 27).

         There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d at 116. But prompt and permanent placement of a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a). The best interest analysis evaluates the best interest of the child, not that of the parent. In re A.C.B., 198 S.W.3d 294, 298 (Tex. App.-Amarillo 2006, no pet.); see In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (noting "the Legislature made clear that courts cannot leave children in foster homes indefinitely while existing parents try to improve themselves and their conditions").

         II. The Department's cases against the mother:

         In re D.T. & A.T., 07-19-00071-CV and In re ...


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